Header graphic for print
Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Nebraska Beef Ltd., – You are being watched.

You have to wonder if the folks who buy from Nebraska Beef have ever visited the plant?  Have they ever had the plant audited.  Have they ever reviewed the Non-compliance Reports?  Frankly, I think the grocery stores – especially the big box types – need to take a more active role in seeing that plants like this perform – that is – they do not produce meat products contaminated with E. coli, Salmonella, Listeria, etc.  Perhaps stores should be less concerned about sales and more concerned with safety.

I am also still wondering if Nebraska Beef grinds hamburger and if that hamburger will be part of an expanded recall.  "Recall," it started at 500,000 pounds and then moved to 5,300,000 pounds based upon illnesses in Ohio and Michigan.  It now appears according to press reports, that Nebraska Beef E. coli meat is linked to illnesses in Georgia.

  • John Munsell

    Is Nebraska Beef’s Expanded Recall Adequately Inclusive?
    On July 3, 2008, FSIS issued a News Release in which it announced that Nebraska Beef was expanding its recall of meat potentially contaminated with E.coli. The initial recall, done on June 30, 2008 covered 531,707 lbs. The expanded recall covers 5.3 million pounds. The current E.coli outbreak, directly related Kroger recall, and Nebraska Beef’s recall are creating nationwide discussion with many questions, some of which remain unanswered. The purpose of this report is to challenge Americans to closely review all details involved in this outbreak and recalls, and to stimulate discussion which could lead to improvements in our domestic meat production/inspection system. This is not intended to answer all questions, but to engage the public in a spirited debate to challenge our traditional perception of meat inspection and its impact on public health.
    The nearly ten-fold increase in the newest recall from Nebraska Beef reflects the realization that E.coli-adulterated meat can easily cross contaminate wholesome food, including but not limited to beef. The potential adverse consequences of cross contamination are more readily understood after “The Comet Effect” has been explained.
    A FSIS official described “The Comet Effect” to me in this fashion. When a comet is first seen, the expansive head of the comet appears, followed by a trail of debris which gradually dissipates until the comet tail totally disappears. Likewise, when chilled carcasses are broken down into components at a slaughter house disassembly line (fabrication), if one piece of the carcass is adulterated with e.coli, that piece deposits E.coli on the conveyor belt. The initial contact of the meat with the belt deposits the lethal pathogen on the belt. Other pieces of meat which are subsequently placed onto the belt pick up the E.coli, gradually diminishing the amount of E.coli on the belt until all bacteria are fully removed from the belt. These bacteria are thus passed downstream in the plant on various pieces of intact primals and on boneless trimmings. And, as these adulterated pieces come into contact with other meat, either at the slaughter house or at downstream further processing plants and retail meat markets, these invisible USDA Inspected and Passed pathogens cross contaminate even more meat as well as food processing equipment such as tables, saws and grinders. Eventually, this adulterated meat finds its way to restaurant tables, in household kitchens, and in hospital cafeterias, to name but a few destinations.
    The meat industry has conducted extensive testing to prove that “The Comet Effect” likewise eventually removes all evidence of E.coli contamination from the conveyor belt. The sanitizing procedure is accomplished strictly because other pieces of meat have picked up and moved the pathogen from the belt elsewhere into the production system at the slaughter establishment. This purifying procedure raises many questions. First of all, how much time and subsequent meat is required before the belt becomes safe again? Has the industry released to the public their “Comet Effect” studies for peer review and cross examination?
    Another issue relating to the Nebraska Beef recall is “lot” determination. If meat from one “lot” is contaminated and demands a recall, a recall of most or all meat from that lot is generally recalled. Therefore, it is to the advantage of meat plants to create small lots to minimize the size of the recall. Plants are authorized to define lot sizes. If one day’s production is considered a lot, and a recall is performed, the entire day’s production may be subject to the recall. In my plant, I established a lot as being a 2-hour period, meaning we had four lots a day. Other plants may establish lots breaks every 30 minutes, every 5,000 lbs, or whatever they can justify. Large slaughter/boning plants frequently define a lot as 10,000 lbs of boneless trimmings. They produce five-each 2,000 lb combos of boneless trimmings, which constitutes a lot for that production line. They then collect a grand total of one pound of trimmings (typically n-60) from the 10,000 lbs of trim, test it for pathogens, and release the meat if the test is negative for E.coli. If the test is positive for E.coli, those 5 combos are then diverted to plants which fully cook the meat, killing all bacteria prior to release into general commerce. Only the 10,000 lbs in that one lot are diverted, as all other lots of trim are considered separate and not subject to special treatment or recalls. The issue of whether collecting one pound out of 10,000 lbs qualifies as effective sampling is an issue to be discussed another time, but certainly demands intensive scrutiny.
    The fact that carcasses harboring e.coli transfer the pathogen onto conveyor belts during the fabrication process is generally agreed. The debate centers around the extent of cross contamination once the pathogen is on the belt, and how “The Comet Effect” on the conveyor belt can impact the determination of what constitutes a “lot”. If E.coli-adulterated pieces of intact beef are initially placed on the belt 80% of the way through production of the 10,000 lb “lot”, pathogens likely would remain on the belt well beyond the termination of the 10,000 lb lot into the commencement of the next lot. Potentially, the pathogens will cross contaminate trimmings involved in numerous subsequent 10,000 lb lots, demeaning the justification for terminating a lot at an artificial point in time or poundage.
    Compounding this issue is that when plant-conducted microbiological tests indicate e.coli-adulterated meat, and the lot is diverted to plants which fully cook, FSIS does not issue NR’s or other enforcement actions. The official FSIS stance in such issues is that the plant’s ability to detect and divert bad meat constitutes proof that the plant’s HACCP Plan has prevented the shipment of unsafe meat into commerce. While preventing shipment of adulterated meat into commerce is indeed a laudable event, we must acknowledge that everyone agrees that testing is done merely on a portion of the lot in question, and test results are no guarantee that all meat in the lot is wholesome. Annual certifications from packers publicly state this, while they state that no silver bullet is in existence to guarantee that 100% of their meat is safe. Granted. Elsa Murano was precisely correct when she stated “There is no such thing as risk free raw meat”. We simply cannot test 100% of meat, or there would be no meat remaining to sell and consume.
    However, the foundational issue that the adverse lab test results indicate failures in the plant’s kill floor sanitation protocol is being ignored, and FSIS chooses to circumvent the need for the plant to implement corrective actions to prevent recurrences. This reveals that FSIS is knowingly allowing slaughter establishments to recurringly produce e.coli contaminated meat, assuming that plant-conducted tests of 10,000 lb “lots” will certainly detect and divert any adulterated meat. Instead of requiring corrective actions, FSIS applauds plants which detect and divert adulterated meat, while fully cognizant that testing does NOT catch anywhere near 100% of adulterated meat.
    This is reminiscent of ConAgra’s 19.1 million lb recall in June of 2002. Prior to the recall, ConAgra provided marketing literature to customers which included statements such as:
    “Most importantly, the study (by Colorado State University) resulted in a 6 log or 99.9999 percent reduction in pathogenic bacteria from the live animal to the chilled carcass, virtually sterilizing the carcass”.
    A May 10, 2002 article by Dan Murphy in “The Meating Place” entitled “ConAgra Beef To Adopt New Anti-Bacterial Rinsing Process” identified the process as “….providing bacteria reduction of 99.99999 percent when used as part of the company’s multiple hurdle intervention system”. The five 9’s to the right of the decimal are correct, and constituted an unheard of 7-log reduction in pathogens.
    Their 19.1 million lb recall occurred one month later.
    USDA’s OIG conducted an investigation after the recall, and issued their report one year later. Two verbatim statements from the OIG report were:
    “Data was available to both ConAgra and USDA in the period prior to the recall that indicated that E.coli contamination was becoming a CONTINUOUS (emphasis added) problem at ConAgra”.
    “Although animal feces on product was repeatedly (emphasis added) observed during production at ConAgra, USDA took no enforcement action”
    What happened to the “virtual sterilization of carcasses”? Perhaps virtual contamination of carcasses!
    What has FSIS learned from the OIG report? The fact that the agency continues to avoid enforcement actions at plants which experience ongoing adverse E.coli lab test results reveals that FSIS wants to avoid confrontations at the big slaughter establishments. Instead of mandating corrective actions at these noncompliant abattoirs and protecting public health, the agency wears blinders when confronted with these recurring adverse e.coli lab results at the source originating slaughter plants. A close inspection of E.coli recalls this century, and visits with the impacted plant owners, quickly reveals that FSIS forcibly lambastes with both enforcement barrels small downstream non-slaughter destination plants which have unwittingly purchased previously-contaminated meat. The same agency intentionally ignores slaughter plants which experience recurring E.coli positive test results merely because the meat (which is caught) has been diverted.
    Recall # 022-2008 dated June 30, 2008 for the initial Nebraska Beef recall reveals current problems in the degree of USDA undersight under the HACCP deregulated environment. The items recalled were produced during the time frame of May 19 through June 24. The agency’s press release regarding the expanded recall expanded the time frame from May 16 through June 26. The fact that a major packer can recurringly produce e.coli adulterated meat over a 6-week period indicates a HACCP Plan with major deficiencies, an agency which is asleep at the wheel, or both.
    Please notice that the initial recall included two separate line entries for “Beef Chuck” meat, both from the May 19 production date. One entry had a case code of “10260”, and the second had a case code of “10263”. Typically, codes are assigned consecutive numbers for ease of reference. The appearance is that Nebraska Beef produced several lots of “Beef Chuck” meat on May 19, with each lot having individual case code lot numbers. The question is obvious: what happened to “Beef Chucks” bearing the interim case codes 10261 and 10262? Chucks in these two lots manufactured between the recalled lots of 10260 and 10263 quite likely were cross contaminated with residual E.coli from lot # 10260. And, what is the status of chucks produced on May 19 in lots following lot # 10263? Is FSIS to assume that “The Comet Effect” resulted in the immediate disappearance of E.coli from conveyor belts immediately at the cessation of each lot? Furthermore, what is the status of other products which may have been produced from the same fabrication line? Did the chuck fab line also produce briskets, which are excluded from the recall? Since shank meat is being recalled, the likelihood exists that briskets also touched the E.coli-contaminated belt. The same likelihood may apply to chuck mock tenders, flat iron steaks, and any other product emanating from arm chucks or square chucks. And, what period of time was required for “The Comet Effect” to be fully dissipated?
    The expanded recall stated “The products subject to recall were further processed into ground beef at other firms…” Fortunately, this resurrects the current unresolved dilemma whether intact boxed beef items which are surface contaminated with E.coli should be classified as being adulterated. An article by Ann Bagel Storck in Meatingplace on June 26, 2008 stated that “FSIS is standing firm with some of its key policies regarding E.coli 0157:H7 right now”. The article went on to state that Dr. Richard Raymond told NAMP’s executive committee that “…while FSIS is exploring the idea (of calling surface contaminated meat adulterated), it is not developing a new policy at this time”.
    Therefore, how can e.coli-adulterated boxed beef be included in a recall when the agency agrees with the industry contention that intact meat items which are surface-contaminated with E.coli not be considered adulterated? But the conundrum extends beyond this definition.
    Many slaughter plants which produce boxed beef insert the following statement on their invoices on which they sell boxed beef:
    “Not Intended for Grinding”
    Therefore, the source slaughter plants are notifying customers that their boxed beef is not intended for grinding, and if the destination plants use all or parts of the boxed beef in grinding operations, the downstream plants do so at their own peril because the meat may not be safe. The inference is that whenever these allegedly “noncompliant” downline plants indeed grind any portion of boxed beef, the grinding plant is solely liable for any resulting sicknesses because they had been forewarned of food safety problems admittedly inherent in boxed beef.
    Further processing of boxed beef almost always produces trimmings, and multiples tons of trimmings daily! The grinding of such trimmings has always taken place, and always will. The tremendous economic benefit of grinding trimmings is an essential part of every plant, is ethical and justifiable, and cannot be denied. Some boxed beef items, such as boneless 2-piece chucks, are entirely ground. Everyone in the industry and FSIS are fully cognizant of this fact; nevertheless, FSIS finds no fault with the large slaughter plants printing the disclaimer “Not Intended for Grinding” on invoices.
    At least two major problems arise in this scenario. First of all, all boxed beef moves in commerce proudly bearing the official USDA Mark of Inspection. Consumer’ perception of the mark can be seen in NCBA’s 1998 beef cookbook entitled “America’s Favorite Beef Recipes”. The following reassuring statement is found on page 6 of the cookbook:
    “First, the wholesomeness of our meat supply is ENSURED (emphasis added) by meat inspection conducted by the U.S. Department of Agriculture (USDA). All meat that is sold must, by law, pass inspection. Inspection provides assurance that all meat sold is wholesome (emphasis added) and accurately labeled”.
    For decades, consumers have been assured that USDA-inspected meat is wholesome. However, the same year that NCBA published this cookbook, HACCP came into existence. By FSIS self admission, the agency’s role under the HACCP umbrella would be “Hands Off”, and that the agency would no longer police the industry. Instead, the industry would be forced to police itself, while FSIS would disband its traditional command and control authority. What have been the logical consequences of the agency’s unilateral bequeathal of its traditional hands on authority to the industry? One answer can be seen in a recent power point training paper authored by FSIS and disseminated to its field force. The first sentence on the second slide of the power point stated:
    “Grinders with prerequisite programs should not rely on the mark of inspection to accept incoming product”.
    This refreshingly revealing statement exposes the fact that the agency no longer values their mark of inspection to have any connection to product wholesomeness. The agency may contend that the real culprit here is the attempt by industry to hide important procedures and lab test results by obfuscating them in prerequisite programs which are outside the HACCP program and off limits to FSIS, which by the way, has been relegated to a “Hands Off” non-inspection role because of HACCP. All smoke screens aside, the Mark of Inspection should be meaningful regardless of how reference to it is made, whether in HACCP Plans, prerequisite plans, or any other documents. Secondly, FSIS cannot have their cake and eat it. The agency voluntarily offered to step aside from its traditional authority to maintain a “Hands On” role in meat inspection when it mandated that all federal plants implement HACCP Plans. FSIS also volunteered to set aside its ability to police plants, and publicly promised to disband its previous command and control authority. Now that sanitation problems, outbreaks and recalls are surfacing, FSIS wants to reassume its previous authority, in direct contravention of its publicly stated promises in the mid-90’s that it would jettison such authority. HACCP sounded good in theory, was a gift to the industry, but real world events have proven that deregulation of the meat industry was a mistake.
    Upton Sinclair’s epic “The Jungle” shockingly revealed that mankind cannot be trusted to police itself. In less than 100 years, HACCP enabled the industry to come full circle, while USDA/FSIS unilaterally authored and mandated the current HACCP-style deregulation of the industry.
    FSIS cannot have it both ways. Since the agency concludes that boxed beef which is surface contaminated with e.coli is not adulterated, it has no authority to “suggest” to Nebraska Beef that boxed beef should be recalled. Where is the dividing line which delineates the degree of “Hands On” authority FSIS still enjoys, or what degree of power the agency can impose on the industry. If meat plants are empowered to police themselves (an initial agency promise), then the meat plants should be allowed to implement their own corrective actions in the absence of FSIS meddling.
    I am greatly surprised that FSIS did not change their policies regarding e.coli allegedly not qualifying as an adulterant on boxed beef following the conclusion of the Milwaukee Sizzlers/Kriefall litigation against Excel. An article written by Tom Johnston and appearing in Meatingplace on June 16, 2008 made the following statements:
    “The family of a 3-year-old girl who died nearly eight years ago as a result of E.coli 0157:H7 sickness has reached a $13.5 million settlement with Excel Corp., the Milwaukee Journal Sentinel reported”
    “Brianna Kriefall, 3, died in July 2000, following a battle with E.coli 0157:H7 after dining at a Sizzler restaurant with her family near their South Milwaukee home. She and 140 other people were sickened with E.coli during the related outbreak”
    During the litigation, one of Excel’s statements was:
    “The uniform national standards governing the production of raw meat expressly provide that whole-intact meat containing E.coli may be distributed for consumption in interstate commerce (emphasis added). This is because, although pathogenic bacteria (such as E.coli) occurs naturally in the production of meat (and is virtually impossible to avoid, safe food-handling readily destroy the bacteria. Instead of requiring meat producers to do the impossible (by completely eliminating pathogenic bacteria), the federal government relies on the end-user to follow safe food-handling practices to avoid the dangers associated with raw meat”
    The source of the above statement comes from the article “Preempting Food Safety: An Examination of USDA Rulemaking and Its E.coli 0157:H7 Policy in Light of Estate of Kriefall ex rel. Kriefall v. Excel Corporation” by Denis Stearns. This report has been provided to top FSIS officials, who are now fully cognizant of the litigation’s proceedings, and its consequences.
    This report provides fodder for multiple discussions, not the least of which is the federal government’s contention that it relies on the end user to destroy pathogens, rather than requiring meat plants to prevent contamination in the first place.
    I have intentionally delved into this e.coli issue in detail because of its relevance in the current Nebraska Beef recall. Since FSIS places primary responsibility on the consumer to fully cook e.coli, while insulating the source slaughter plants from accountability for shipping boxed beef (intact meat) into commerce which is surface-contaminated with E.coli, we can safely expect ongoing major outbreaks and recalls until FSIS decides to make the following changes:
    1. HACCP must be replaced, or at least modified to allow FSIS to police the industry, have “Hands On” authority, and modify its command and control authority.
    2. E.coli must be classified as an adulterant, in any location after the kill floor.
    3. Tracebacks to the source of e.coli and salmonella contamination must be ardently pursued, in the absence of policies which artificially restrain the agency’s ability to expeditiously determine the true SOURCE of contamination.
    4. FSIS must proactively implement aggressive enforcement actions against the source slaughter plants.
    5. The agency must commence a dramatic and permanent increase of agency conducted microbiological testing regimen at all slaughter plants, to include testing of carcasses, boxed beef, boneless trimmings and ground beef. It is well past time that the agency voluntarily a “Hands On” role in meat inspection, or beg for an updated Upton Sinclair.
    Finally, meat production and inspection are entering a difficult time which will require a new mindset, devoid of present policies which are counter productive to the goal of consistently producing safe food. To their credit, the large slaughter facilities have invested millions while implementing their multiple hurdle pathogen intervention systems. Even the best theoretical systems, such as ConAgra’s vaunted 7-log reduction system are prone to failures, with the unfortunate consumer paying the tragic consequences. Pathogens are mutating, developing resistance to the best roadblocks that contemporary science can throw in their way. Alternative methods are few in number. Through all this, we must remember that the two foundational building blocks of HACCP are (1) Preventive Measures, and (2) Corrective Actions. Ongoing outbreaks and recalls prove that our industry’s preventive measures (such as Hazard Analyses) are inadequate. Secondly, corrective actions AT THE SOURCE are grossly avoided, since, as Excel argued, “the federal government relies on the end user to follow safe-handling practices to avoid the dangers associated with raw meat”. As long as USDA embraces the low, comfortable road requiring consumers to fully cook our manure, these ugly outbreaks and recalls will continue unabated.
    Should FSIS mandate slower chain speeds? Or an increase in company trimmers on the production line to more effectively manually remove all visible contaminants? Or place more inspectors on the kill floor? Or mandate a dramatic increase in hide-on carcass washes, lactic acid sprays, etc? I recommend not, for the following reason.
    It is possible that a plant could actually increase its chain speed, yet continue to produce consistently wholesome meat. FSIS should not be in the business of mandating specific interventions, because some facilities can and have developed truly efficacious interventions. FSIS should allow plants to utilize whatever interventions they desire (a basic tenet of HACCP), but the success of these interventions must be constantly validated via the previously-mentioned dramatic increase in agency-conducted microbial testing. Plants with adverse test results must clean up their act, or depart the industry. Such test results must also be considered as validations, to the agency’s chagrin, of individual plant’s success (or failure) to produce safe meat. Thus far, the agency adheres to the philosophy that agency-conducted adverse lab results validate plants’ failed HACCP Plans, while refusing to admit that good lab results indeed provide ongoing validation that plants’ HACCP Plans are successful. Again, the agency cannot have it both ways.
    HACCP is all about liability. The advent of HACCP has insulated the agency from any and all liability when adulterated meat is detected in commerce, and when outbreaks occur. After all, how can FSIS be found liable for bad meat which the agency had never inspected in the first place? Since the industry now polices itself while FSIS has been relegated to a “hands off” non-inspection status, only the industry is liable. Where is Upton Sinclair now that we need him?
    While additional interventions have not yet been invented, and new ingenious intervention options are admittedly limited, FSIS still must bite the bullet and determine if its primary reason for existence is to protect consumers or to insulate the largest industry players from accountability.
    The current Nebraska Beef recall should not be considered an isolated incident, unrelated to historical precedents, the HACCP epic, or existing FSIS policies. Continuing outbreaks and recalls are guaranteed, and we should not expect moderate improvements until the very foundation of HACCP is revisited and changes implemented. The Nebraska Beef imbroglio is not an aberration, but a natural outgrowth of HACCP’s deregulation of the industry.
    The constitutional rights of legitimate entities such as Krogers, Lunds & Byerlys, United Food Group, Richwood Meat Co, Hoss’s Fresh Xpress, Davis Creek Meat & Seafood and dozens more to remain in business should supercede FSIS’ desire to semi retire.
    Long-term agency employees perceive that FSIS wants to totally divest itself of providing inspection services to small plants. HACCP provides the agency with the perfect tool to accomplish its goal.
    An article authored by Carol Sugarman which appeared in the February 20, 2003 Food Chemical News provides a dramatic finishing touch. Reporting on an agreement between FSIS and Nebraska Beef, the article stated “Steven Cohen, spokesman for FSIS, told Food Chemical News earlier this month that the main reason the agency settled with the company was to eliminate the possibility that the plant could continue to operate under allegedly unsanitary conditions during months of litigation”. Who’s on first? Answer: two runners, simultaneously. This is a recipe for disaster.
    John Munsell, Manager
    Foundation for Accountability in Regulatory Enforcement (FARE)
    Miles City, MT

  • Matt

    Do you know much about e.coli testing?
    Is it something you have to culture, or is there an instant test?
    I read about controls put in place by Jack in the Box on their ground beef suppliers that test for e.coli contamination at several points along the supply line. How is that actually done? Can a layman do it?

  • Jace Williams

    My family has been in the meat business for several generations. The business still remains in the family. I recall cleaning the plant everyday after school. Back then, product contamination (like we have today) was unheard of. My father was a ‘stickler’ for cleanliness and sanitation. Back then, the standards were not strict compared to today’s standards.
    This is my opinion:
    In years past, a majority of meat processors were family businesses. Today, the major meat processors are owned by international food conglomerats. It appears meat plants are trying to produce products
    beyond their plant’s capacity to meet unrealistic corporate expectations. For example, a processing room should be allowed enough time to ‘dry’ after being cleaned to reduce the risk of bateria.
    In many other cases, the people who work in supermarkets also handle meat after it leaves the plant; and before it reaches the consumer.
    Example: I got sick eating a Marie Callender’s Frozen Entree. The people at Con Agra (who make products under the Marie Callender label) were not at fault. It was discovered the grocery workers allowed the product to sit on a pallet and thaw.Then
    the product was re-frozen.
    With today’s international food market, and the complex food chain, it would very hard to prove a single source of food contamination. Because of that, there has, and always be an ‘assumption of risk’ within our food supply.